Prashant Iyengar on how in the eyes of the law, the internet giant is like the homeless in India

Since last Thursday, Internet-search giant Google has been busy collecting images of roads in Bengaluru in order to launch its popular StreetView service for the city. It is a feature that allows users of Google Maps to virtually navigate and explore cities through a 360-degree, street-level imagery. To achieve this, Google drives vehicles with cameras mounted on them through each street and neighbourhood in a city, systematically capturing everything in their path, including buildings, roads, traffic, animals and human subjects.

Intrinsically, the idea is exciting for its ability to enable distant users to sample street life in cities and neighbourhoods that they may have never physically visited. Or, even for the exhilaration it permits of viewing familiar spaces virtually. However, this technology has also raised interesting privacy concerns in countries where it has previously been launched. In April 2008, shortly after the service was first launched in the US, Google was sued by a couple who objected to the pictures of their home being publicly displayed. This suit was settled out-of-court two years later. Google had, meanwhile, made changes to their service, permitting users to “opt out” of the service, rendering similar suits unnecessary. Google has faced similar concerns in other jurisdictions, including Europe and Japan, and has successfully fended them off by adapting its service by voluntarily blurring faces of all individuals captured during the process and vesting more agency in the hands of users to take down information that offends them.

Putting aside the privacy debate over StreetView in other jurisdictions momentarily, I want to raise two questions about India and the Indian law in the context of StreetView: first, does Indian privacy law – that evanescent sub-topic of tort and constitutional law – contain anything useful or even informative which we can bring to bear on this discussion? And, do the specificities of the Indian street life merit a different approach to the privacy question?

On the first question, the legal right to privacy in India has been, for the most part, a child of the higher judiciary. However, despite a fairly substantial volume of case law that has accumulated by now that references “privacy”, one cannot suppress a sense that the concept lacks, even today, a definitive articulation. The individual’s privacy in India today is an uneven concept – stronger in some situations and non-existent in others. It is a contingent, rather tame concept of a general right to privacy that we have, from which it is not possible to mount a confident attack against Google.

Given this state of indeterminacy about one’s right to privacy, a case for the extension of this right in public spaces seems even more far-fetched. Indeed, in specific cases, courts have dealt damaging blows to the emergence of such a concept. For instance, in a tort case from colonial times, it was held that a window overlooking a public street would not infringe the privacy of the neighbours across the street. Likewise, in a case involving sex workers, the Supreme Court held that they were not entitled to move freely in a public place due to the very subversive nature of the professions they practiced in private – signalling that the private seeps into the public only as a limiting or negative concept.

Against this context Google’s extension of its opt-out privacy principles to India is commendable, because they are not warranted by the current state of law in the country. Indeed, it may even result in a “wagging the dog” of privacy jurisprudence in India by seeding the notion of a limited “right to public anonymity”, which is currently indeterminate in the Indian law. That individuals have no “legitimate expectation of privacy in a public place” is axiomatic in most other common-law jurisdictions and is one of the hidden legal ballasts that supports Google’s StreetView service. However, there has not yet been an occasion for the Supreme Court to pronounce on this question. It is very likely that the court will defer to international precedent on the matter. However, until this eventuality, the legal position on the question must be regarded as unsettled.

Turning briefly to the second question regarding the specificities of the Indian situation, India is home to one of the largest populations of urban homeless persons. To them the street, generally, and pavements and bridges, more specifically, are “home” regardless of their tenuous legal title to these claims. To casually dismiss their claims is to crudely conflate privacy with property, which is insensitive to the tragedies of urban life in India. In his insightful essay on filth and the public sphere, Sudipta Kaviraj makes the fascinating point that “for the poor, homeless and other destitute people” of India, “public means not-private spaces, from which they could not be excluded by somebody’s right to property.

"It comprises assets which are owned by some general institution like the government or city municipality which does not exercise fierce vigilance over its properties as individual owners do, and which allows through default, indifference and a strangely lazy generosity, its owned things to be despoiled by those with out other means. Public space is a matter not of collective pride but of desperate uses that can range from free riding to vandalizing."

I would add here that this notion of public space is shared not just by the homeless but Google as well, which has taken advantage of the lazy generosity of the Bengaluru traffic police to appropriate images of the city for its purposes. Like the homeless, Google is willing to cede to competing private interests, if they are asserted strongly enough. (This makes Google StreetView, despite its origins in Mountain View in California, characteristically Indian!) In the past, Google has required users to submit documentary proof of their titles before their claims to opt out are honoured. In the context of the homeless particularly, honouring privacy in India may require a different approach. Fortunately for Google, the homeless are not likely to fiercely assert this right.

To conclude, I will like to clarify that I write to praise Google not to bury him, since Google is an honourable man. Over the past several decades, technology – from wire tapping to DNA tests to paternity tests – has been the site and discursive nucleus that has facilitated an efflorosence of privacy jurisprudence in the country. Two decades ago we did not have Facebook, Google, unsolicited calls and spam, and, correspondingly, neither did we have a sharp notion of our privacy. One awaits with optimism the kinds of changes in privacy jurisprudence that might emerge from StreetView.

Prashant Iyengar is a lawyer and consultant on privacy issues with The Centre for Internet and Society, Bengaluru.[email protected]